[Daryoush] Taha was arrested in 1998 by
the Bensalem police, booked into custody, and transferred to the Bucks County Correctional Facility (`BCCF’). . . . . In the course of that process the
police and BCCF created a file that included information about Taha and his
arrest, along with his photograph. . . . While Taha `strongly
believed himself to be innocent of all charges,’ he accepted and completed an
Accelerated Rehabilitative Disposition (`ARD’) `in order to secure the
automatic expungement of all charges and avoid the damage to his reputation and
career prospects that would arise from having a criminal record.’ . . . In
2000, after Taha completed the ARD program, the Bucks County Court of Common
Pleas entered an expungement order. . . .

In
2007, according to the allegations, the County defendants created a public
website that included the booking photographs and arrest records of people who
had been incarcerated in Bucks County -- including those `who had been arrested
years before and had their charges either expunged or dismissed.’ . . . This
allowed the corporate defendants to obtain Taha's record and picture and
publish them on their own websites for `public consumption,’ without Taha's
consent. . . . At the time he filed his original complaint in 2012,
Taha's information and photograph remained available on the BCCF site. .
. . Taha had been convicted of no crime in the thirteen years since his
arrest . . .; the internet publication of his `mugshot’ and 1998 record caused
him reputational, emotional and financial harm. . . .

Taha v. Bucks County, 2014 WL 695205 (U.S. District Court for the Eastern District of
Pennsylvania 2014) (hereafter “Taha v. Bucks County #1”).

According to the
most recent opinion, “Taha's allegations [assert that] [the Citizens
Information Associates’, LLC a/k/a “CIA”] commercial objective is `to draw
social media attention’ to the mugshots and criminal records it publishes,
`earn advertising revenue,’ and `extract a fee from the publicly disgraced
individual in order to ‘unpublish’ their information.’” Taha v. Bucks County,
supra (quoting Taha’s Complaint).

According to the
same opinion,

[i]t
has now been established that CIA owns and operates two of the websites at
issue. Taha's Second Amended Complaint includes three substantive claims
against CIA: (1) dissemination of his criminal history record information in
violation of § 9121 of Pennsylvania's Criminal History Record Information Act
(`CHRIA’), 18 Pennsylvania Consolidated Statutes Annotated § 9101et
seq.; (2) unauthorized use of a name or likeness in
violation of 42 Pennsylvania Consolidated Statutes Annotated § 8316; and
(3) portraying him in a `false light,’ a subset of the tort of invasion of privacy.
CIA moves to dismiss all three claims.

Taha v. Bucks County, supra.

The judge begins the substantive part of his opinion by
noting that (i) this is a diversity case, meaning the federal court has
jurisdiction because the parties are from different U.S. states and (ii) Pennsylvania
law therefore applies.Taha v. Bucks
County, supra.

He also explains that to

`survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to “state a
claim to relief that is plausible on its face.”’ Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). This `requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.’ Bell Atlantic v. Twombly, supra. To
decide a motion to dismiss, a court may consider `the allegations contained in
the complaint, exhibits attached to the complaint and matters of public
record.’ Pension Ben. Guar. Corp. v. White Consol. Indus ., Inc., 998
F.2d 1192 (U.S. Court of Appeals for the 3rd Circuit 1993). In addition, `a
court may consider an undisputedly authentic document that a defendant attaches
as an exhibit to a motion to dismiss if the plaintiff's claims are based on the
document.’ Pension Ben. Guar. Corp. v. White Consol. Indus ., Inc., supra.

Taha v. Bucks County, supra.

The judge then addressed whether the CIA’s motion to dismiss
the three causes of action should be granted, starting with the CHRIA claim:

It establishes a set of rules for
criminal justice agencies-among which `only state or local police departments’
may disseminate record information to the public at large, Pa. Office of Att'y
Gen., Criminal History Record Information Act Handbook 1, 14 (7th ed. 2013). .
. -- but says nothing about private actors. It would require an inductive leap
to hold that these rules, by implication, prohibit any sharing of criminal
history record information by private persons. . . .

The analogy is inapt. Defamation is a
tort that anyone can commit; violation of § 9121 is not.
Because § 9121 regulates dissemination by criminal justice agencies
only, Taha's claims against CIA for violation of § 9121 will be
dismissed.

Taha v. Bucks County, supra.

The judge then took up Taha’s claim that the CIA’s website
constituted an unauthorized use of his name or likeness in violation of 42
Pennsylvania Consolidated Statutes Annotated § 8316.Taha v. Bucks County, supra.Under § 8316,

any natural person whose name or
likeness has commercial value and is used for any commercial or advertising
purpose without the written consent of such natural person ... may bring an
action to enjoin such unauthorized use and to recover damages for any loss or
injury sustained by such use.

And in Eagle v. Morgan, 2013 WL
943350 (U.S. District Court for the Eastern District of Pennsylvania 2013), the
Court issued a verdict for a plaintiff who had presented `ample testimony that
the name “Dr. Linda Eagle” has commercial value due to her investment of time
and effort in developing her reputation in the banking education
industry.' Eagle v. Morgan, supra.

As CIA notes, Taha has alleged no facts
demonstrating he has invested time, effort and money to create `valuable
interest’ in his name or likeness. Presuming that he can allege such facts, his
claim presents the additional wrinkle that it is exactly the inverse of the
prototypical § 8316 claim. While the typical plaintiff complains that
a defendant has profited by appropriating the value of her brand, Taha complains
that CIA has profited by threatening the value of his brand -- that it has
ransomed his good name. Whether § 8316 encompasses this kind of
activity is a question for a later opinion, as are the questions of whether
CIA's websites constitute `news reports,’ see i§ 8316(e)(2),
and whether application of § 8316 here would violate the 1st Amendment.

Taha's claim will be dismissed without
prejudice; should he wish to re-plead it with facts sufficient to show that his
name and likeness have `commercial value’ as defined by § 8316(e), he may
do so.

Taha v. Bucks County, supra.

Finally, the judge took up Taha’s claim for “false light,” a
concept I’ve discussed in prior posts. He began his analysis of CIA’s motion to
dismiss this cause of action by noting that to

prevail on a claim of `false light,’ a
plaintiff `must show that a highly offensive false statement was publicized by
[defendants] with knowledge or in reckless disregard of the falsity.’ Santillo
v. Reedel, 634 A.2d 264, 266 (Pennsylvania Superior Court 1993). The false
statement need not be explicit. `Literal accuracy of separate statements will
not render a communication “true” where the implication of the communication as
a whole was false.’ Santillo v.
Reedel, supra (quoting Larsen v. Phila. Newspapers, Inc., 543
A.2d 1181, 1189 (Pennsylvania Superior Court 1988)).

A plaintiff may thus prove
a false-light claim by showing that a defendant `created a false impression by
knowingly or recklessly publicizing selective pieces of true information.’ Santillo v. Reedel, supra. `[D]espite
the accuracy of the facts disseminated, discrete presentation of information in
a fashion which renders the publication susceptible to inferences casting one
in a false light entitles the grievant to recompense.’ Larsen v. Phila Newspapers, supra.

Taha does not dispute that
the discrete elements of information published by CIA were true. He claims,
rather, that CIA selectively published his mugshot and arrest information in
order to falsely portray him as a `criminal’. . . , and created `a false
impression regarding [his] criminal history and character.’ . . .

He alleges that CIA's business model
depends on casting people in a sordid light, so that they will pay to have
their mugshots and records `unpublished.’ CIA counters that its websites
include the disclaimer that `[a]n arrest does not mean that the individual has
been convicted of the alleged violation. Individuals on this website are
innocent until proven guilty by a court of law.’ . . .

Given the disclaimer and the accuracy
of the information published, CIA contends that its websites could not possibly
give rise to any false impression. Furthermore, CIA argues, even if the
websites could be construed as conveying a false impression, CIA could not be
found to have acted in reckless disregard of any falsity.

Taha v. Bucks County, supra.

The judge then explained that

I cannot endorse CIA's position as a
matter of law. The questions here are questions of fact, and Taha's claim, at
this stage, is not implausible. The bustedmugshots.com webpage on which Taha's
profile appears features the legend `BUSTED!’ in large bold letters over his
mugshot, as well as a faint image of the company's icon: `B!’ in a square
speech bubble. . . . Taha's `Information’ and `Booking Charges’ are prominently
placed in the center of the page, as are two clickable options to `Get Detailed
Information About This Arrest’ and `Monitor This Person For Future Arrests.’ .
. . The disclaimer appears in very small font further down the page.

It is plausible that this design
creates the impression that Taha is a `criminal’ -- at the very least, that he
is guilty, that he has done something wrong, that his conduct warrants
monitoring in future. And it is plausible that CIA acted in reckless disregard
of the possibility that Taha was entirely innocent, that he was not `BUSTED!’
but instead unjustly detained. If CIA's business model is extortion by shame,
as Taha alleges, the claim is stronger still.

Taha v. Bucks County, supra.

As to the false
light claim, the judge therefore held that

Taha's
allegations, accepted as true, are sufficient to state a false-light claim
`that is plausible on its face.’ Bell Atlantic Corp. v. Twombly, supra.
I will deny CIA's motion with respect to this claim.